Litigation: Considerations for due-process challenges to classwide statutory damages awards

Many courts have recognized that classwide awards of statutory damages may run afoul of the due-process clause

After sending emails to more than 50 million subscribers, a website faced $25 billion in potential liability under Washington’s Commercial Electronic Mail Act, which imposes statutory damages of up to $500 per violation. Similarly, an entertainment company was sued for more than $100 million for allegedly disclosing subscribers’ personal information in violation of the Cable Communications Policy Act, which provides minimum damages of up to $1,000 per plaintiff. As these examples illustrate, the combination of statutory damages and the class action device can transform even technical statutory violations into high-stakes—and even “potentially annihilating”—litigation.

As numerous courts have now recognized, classwide awards of statutory damages may run afoul of the due-process clause. For a defendant in a class action considering a due-process challenge, there are two key considerations: the applicable legal standard and procedural timing.

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Matthew Brown

Matthew D. Brown is a partner in Cooley LLP’s Litigation Department in San Francisco and a member of the firm’s Privacy, Commercial Class Action Litigation,...

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Christopher Durbin

Christopher B. Durbin is a partner in Cooley LLP’s Litigation Department in Seattle and a member of the firm’s Commercial Class Action Litigation, Securities Litigation,...

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Candace Jackman

Candace Jackman is an associate at Cooley LLP.  Her practice focuses on complex commercial disputes, including user content and privacy litigation.

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